On
December 6, 2016, Zackory John Kerr filed an unsigned
petition for writ of habeas corpus. Dkt. No. 1. On
December 14, 2016, after the clerk's office notified him
that he hadn't signed the petition, the court received
from the petitioner the signature pages. Dkt. No. 6. On
January 11, 2017, the court denied the petitioner's
motion for leave to proceed without prepayment of the filing
fee, and dismissed the case for failure to exhaust his state
court remedies. Dkt. No. 7. The court entered judgment on
January 23, 2017. Dkt. No. 8. Seven days later, the
petitioner filed a motion for reconsideration, arguing that
the court had failed to take into consideration that he had
pled a fundamental miscarriage of justice because “the
alleged constitutional error probably resulted in the
conviction of an innocent man.” Dkt. No. 9 at 1.

The
petitioner doesn't point to a rule that would allow him
to file a motion to reconsider. There is one-it is Rule 59(e)
of the Federal Rules of Civil Procedure. That rule allows a
party to ask the court to alter or amend a judgment, as long
as the party files the motion within twenty-eight days after
the court enters the judgment. Because the plaintiff filed
his motion well within that twenty-eight day period, the
court will treat the plaintiff's motion as a motion to
alter or amend the judgment under Rule 59(e). To prevail on a
Rule 59(e) motion to alter or amend a judgment, the moving
party must clearly establish a manifest error of law, or show
that there has been an intervening change in the controlling
law, or present newly discovered evidence. See Cosgrove
v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998).

The
petitioner brought this case to challenge his January 27,
1995 conviction in Milwaukee County Circuit Court; as the
court noted in its January 11, 2017 order of dismissal, the
plaintiff was convicted as result of entering an
Alford plea. Dkt. No. 7 at 1. The petitioner did not
appeal that conviction and sentence, and he waited three and
a half years-until June 19, 1998-to file a motion for
post-conviction relief. Id. at 2. The Milwaukee
County Circuit Court denied that motion; the petitioner did
appeal from that decision, and the court of appeals affirmed
on September 1, 1999. Id. at 4-5. The petitioner did
not seek review of the appellate court's decision.
Id. at 5. On October 22, 1999, The Wisconsin Court
of Appeals affirmed the circuit court's order denying
relief. State v. Kerr, Appeal No. 1998AP002057-CR,
found at https://wcca.wicourts.gov. At the time that this
court issued its order of dismissal, the petitioner had not
filed anything in his state case since October 11, 2010.

In his
Rule 59(e) motion, the petitioner does not allege that the
law has changed since the court dismissed his petition. Nor
does he allege that he has come across newly discovered
evidence. He argues that his conviction constituted a
“‘fundamental miscarriage of justice' in that
the alleged constitutional error probably resulted in the
conviction of an innocent man.” Dkt. No. 9 at 1. In
order for the court to grant the petitioner's motion on
that ground, it must find that in dismissing the
petitioner's case, the court committed a manifest error
of law. A “manifest error of law” is “the
wholesale disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metropolitan Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting
Sedrak v. Callahan, 987 F.Supp. 1063, 1069 (N.D.
Ill. 1997)).

The
court did not commit a manifest error when it concluded that
the petitioner had not exhausted his state court remedies. In
its order of dismissal, the court acknowledged that the
petitioner had claimed in his petition that he was actually
innocent. Dkt. No. 7 at 2. The court did not consider the
question of whether the petitioner had proven actual
innocence, however, because he never gave the state
courts the opportunity to make that determination. That
is what exhaustion of remedies is all about-before the
petitioner brings an argument to the federal court, he must
give the state courts a chance to decide if that
issue has merit. Because the petitioner did not give the
state courts a chance to rule on his actual innocence claim
(by appealing his conviction, or by asking the Supreme Court
to review his post-conviction claims), this court could not
consider it.

Even if
the court had reached the petitioner's actual innocence
claim, he has not submitted sufficient evidence to prevail on
such a claim. To show actual innocence, a petitioner must
show that “in light of new evidence, ‘it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.'”
House v. Bell, 547 U.S. 518, 537 (2006) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)). Actual
innocence means factual innocence, not legal insufficiency.
Bousley v. United States, 523 U.S. 614, 623 (1998).
As the Supreme Court explained in McQuiggin v.
Perkins, U.S. ___, 133 S.Ct. 1924, 1928 (2013),
“[a] petitioner does not meet the threshold requirement
unless he persuades the district court that, in light of the
new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.”

The
petitioner acknowledges he does not have any new evidence.
Rather, he argues that because of the way things played out
in his state court case, he never had a chance to find out if
DNA evidence would have exonerated him. He asserts that he
had asked his trial lawyer to compel the state to produce DNA
results, but that the state never provided it; he indicates
that in the middle of trial, his lawyer told him that the
state wasn't going to produce the DNA results, and so the
petitioner had better plead guilty or he'd get sentenced
to forty years. Dkt. No. 9 at 1. The plaintiff alleged in the
petition that he “never received the benefit of
utilizing a private investigator nor DNA analysis in
preparation toward his defense which would have gain [sic]
either the advantage of material exculpatory evidence or
evidence establishing guilt.” Dkt. No. 1 at 9.
So-rather than submitting new evidence showing that he
actually is innocent, the petitioner is asking this court to
give him a chance to have DNA analysis conducted, in the hope
that he might conclusively establish either his guilt or
innocence. That is not an actual innocence claim-and it is a
claim that he should have raised in state court by appealing
his conviction over two decades ago.

Finally,
the court notes that a review of the state court docket
indicates that on February 23, 2017, the petitioner filed a
notice of intent to pursue postconviction relief in his state
case. State v. Zackory John Kerr, Case No.
1994CF943412, Milwaukee County Circuit Court, accessed at
https://wcca.wicourts.gov. That notice was forwarded to the
State Public Defender's Office on February 27, 2017.
Id. If the petitioner exhausts his remedies on that
motion-litigates it all the way up to the Wisconsin Supreme
Court, and is unsuccessful-he may again seek relief from this
court.

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